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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Grafton

No. 2017-0198

LOON VALLEY HOMEOWNER’S ASSOCIATION

v.

LEWIS G. POLLOCK & a.

Argued: April 12, 2018

Opinion Issued: June 22, 2018

Wescott Law, PA, of Laconia (Paul T. Fitzgerald and Brett W. Allard on

the brief, and Mr. Fitzgerald orally), for the plaintiff.

Cleveland, Waters and Bass, P.A., of Concord (William B. Pribis on the 

brief and orally), for the defendants.

HANTZ MARCONI, J. The plaintiff, Loon Valley Homeowner’s Association 

(the Association), appeals an order of the Superior Court (MacLeod, J.) denying 

its petition to quiet title to land owned by defendant Lewis G. Pollock and the 

decedent, Norman Wallack, based upon a claim of adverse possession. We 

affirm.

I

The pertinent facts follow. In 1972, Pollock and his two brothers

purchased a vacation home and accompanying land in Lincoln. They conveyed 
2

the property to a trust and divided it into two lots: Lot 11, which contained the 

house, and Lot 7. After purchasing the property, Pollock constructed nine 

condominiums on Lot 11, numbering them units 1 through 9 and designating 

the existing house on Lot 11 as unit 10. In 1973, Pollock and his brothers

incorporated the Association and conveyed Lot 11 and its improvements to it. 

The trial court found that Lot 7 was not conveyed to the Association because 

Pollock hoped to develop it in the future for commercial purposes.

Pollock purchased unit 7, and his brothers purchased units 9 and 10. 

The remaining units were subsequently purchased by Pollock’s law partners, 

clients, and friends, including Norman Wallack, who then joined the 

Association. The trial court found that

[p]ursuant to the Association’s governing documents and the deeds 

by which Association property was conveyed, each member of the 

Association was granted individual ownership of a certain Unit and 

the land upon which it was directly situated, along with an 

“easement of use and enjoyment” for the Association’s “Common 

Property,” which consisted of all Lot 11 land and improvements 

but for the Units themselves and the land located directly 

thereunder.

(Footnote omitted.)

In 1978, when a house and land abutting Lot 11 became available for 

purchase, Pollock solicited members of the Association to help purchase the 

property. Only Wallack agreed to collaborate with Pollock and the two men 

purchased the property for approximately $60,000. The cost of updating the 

home, however, proved to be financially prohibitive, and the men subsequently

decided to sell the property. In 1979, Pollock and Wallack sold the house and 

a portion of the land, collectively Lot 13, at a loss of approximately $12,500. 

They retained ownership of approximately .24 acres of the land which abuts

Lot 11. The .24 acres became Lot 12, which is the subject of this litigation. To 

delineate the property, Pollock had a fence installed that separated Lot 12 from 

Lot 11.

Pollock testified at trial that he and Wallack retained Lot 12 hoping to 

add it to the Association’s property to offset their loss. Pollock explained that 

after unsuccessfully seeking direct compensation from the members in 

exchange for adding Lot 12 to the Association, he and Wallack agreed to allow 

the members of the Association to use Lot 12 on the condition that the 

Association maintain the lot, pay the property taxes, and relocate the fence 

dividing Lots 11 and 12 to its current location, where it marks the approximate

boundary between Lots 12 and 13. Pollock testified that the Association agreed 

to this arrangement, and that the arrangement was well known to the members 

of the Association, especially the Northfields who were “the most interested 
3

people.” The parties do not contest that, since 1979, the Association has paid 

the property taxes and upkeep expenses for Lot 12 and that the Association 

relocated the fence in 1979 at its expense. The trial court found that 

“[c]urrently, Lot 12 is mostly a grassy lawn, apart from several trees and 

landscaped shrubbery that line the fence.”

William Northfield, the only original member of the Association other 

than Pollock to testify at trial, testified that he never discussed with Pollock or 

anyone else the fact that Pollock and Wallack owned Lot 12, despite admitting 

that he discovered in his possession a 1979 letter from Pollock to a surveyor 

referring to the sale of Lot 13 and the fact that Pollock and Wallack were 

retaining part of the land which they intended to add to the Loon Valley 

common land. Northfield also testified that he never questioned why the fence 

was relocated, despite the fact that: it moved from a distance of a few feet from 

his unit to a distance of approximately 80 feet, thereby increasing the alleged 

common property by approximately 15 percent; he learned some time in 1979 

that the Association had paid to move the fence; and he understood this to 

mean that Lot 12 had formally become part of the Association’s common 

property.

Three individuals who became members of the Association after 1988 

testified that they were unaware that Lot 12 was not part of the Association’s 

common property. The trial court found that each of these individual’s deeds 

referred to the Loon Valley site plan dated December 1973 and recorded at the 

Grafton County Registry of Deeds, and that the plan does not include Lot 12 

within the Association’s boundaries. Nonetheless, each individual testified that 

when they joined the Association, they assumed that the Association’s common 

property included all land bounded by the fence dividing Lots 12 and 13 and 

that they never observed any member of the Pollock or Wallack families restrict 

any Association member from using Lot 12.

Sometime around 2014, there was a restructuring of the Association’s 

management, and one of the Association’s new treasurers discovered that the 

Association had been paying separate tax bills for Lot 11 and Lot 12. The new 

treasurers investigated the ownership of Lot 12 and learned that Pollock and 

Wallack were the record owners. In 2015, Northfield sent Pollock an e-mail 

concerning the disputed parcel and stated that if Pollock did not execute a quit 

claim deed, the Association might be required to bring a claim of adverse 

possession in order to merge Lots 11 and 12. Pollock, thereafter, notified the 

Association that he revoked his permission for the Association to use Lot 12. 

The trial court found Pollock’s testimony to be credible.

Following trial, the court found that the Association’s use of Lot 12 was 

permissive and that, even if the court were to assume that the Association’s 

use of Lot 12 was such that Pollock and Wallack should have known that the 

Association had repudiated their permission, it had failed to demonstrate that 
4

such use was exclusive for a twenty-year period. The Association 

unsuccessfully moved for reconsideration, and this appeal followed.

II

On appeal, the Association argues that the trial court erred: (1) when it

found “a permissive arrangement between Lewis Pollock and the Association, 

and thus that the Association’s use of Lot 12 was not adverse”; and (2) when it 

ruled that the Association “had not established that it had utilized Lot 12 

exclusively” during the twenty-year prescriptive period.

In reviewing a trial court’s decision rendered after a trial on the merits, 

we uphold the trial court’s factual findings and rulings unless they lack 

evidentiary support or are legally erroneous. O’Malley v. Little, 170 N.H. 272,

275 (2017). We do not decide whether we would have ruled differently than the 

trial court, but rather, whether a reasonable person could have reached the 

same decision as the trial court based upon the same evidence. Id. Thus, we 

defer to the trial court’s judgment on such issues as resolving conflicts in the 

testimony, measuring the credibility of witnesses, and determining the weight 

to be given evidence. Id. It is within the province of the trial court to accept or 

reject, in whole or in part, whatever evidence was presented. Cook v. Sullivan, 

149 N.H. 774, 780 (2003). Additionally, the trier of fact is not required to 

believe even uncontroverted testimony. Brent v. Paquette, 132 N.H. 415, 418 

(1989). We review the trial court’s application of the law to the facts de novo. 

Little, 170 N.H. at 275.

To acquire title to real property by adverse possession, the possessor 

must show twenty years of adverse, continuous, exclusive, and uninterrupted 

use of the land claimed so as to give notice to the owner that an adverse claim 

is being made. Mastroianni v. Wercinski, 158 N.H. 380, 382 (2009). A use of 

land is adverse when made under a claim of right where no right exists. Id. 

Adverse use has been defined as a use without license or permission; it is 

trespassory in nature. Id. Use is trespassory if it consists of a wrong which 

the fee holder can prevent or for which he can obtain damages by means of 

legal action. Id. To satisfy the adverse use requirement, the nature of the use 

must have been such as to show that the owner knew or ought to have known 

that the right was being exercised, not in reliance upon the owner’s toleration 

or permission, but without regard to the owner’s consent. Bonardi v. 

Kazmirchuk, 146 N.H. 640, 642 (2001). Whether a use of property is adverse 

is an issue of fact. Id. at 643.

To establish a prima facie case of adverse use, a claimant must first 

produce evidence of acts of such a character that they create an inference of 

non-permissive use. Sandford v. Town of Wolfeboro, 143 N.H. 481, 485 (1999). 

Once this initial burden has been satisfied, the burden shifts to the landowner 

to produce evidence that the claimant’s use of the land in question was, in fact,
5

permitted. Id. at 486. “If a use is made pursuant to the permission of the 

owner of the would-be servient estate, that use cannot be adverse.” Town of 

Warren v. Shortt, 139 N.H. 240, 244 (1994). Thus, a use of another’s land that 

began under that person’s permission “cannot become adverse in nature 

without an explicit repudiation of the earlier permission.” Id.

The success or failure of a party claiming adverse possession is not 

determined by the subjective intent or the motives of the adverse possessor. 

Blagbrough Family Realty Trust v. A & T Forest Prods., 155 N.H. 29, 33 (2007). 

Rather, the acts of the adverse possessor’s entry onto and possession of the 

land should, regardless of the basis of the occupancy, alert the true owner of 

the cause of action. Id. In evaluating the merits of an adverse possession 

claim, courts are to construe evidence of adverse possession of land strictly. 

Id.

The Association first argues that the trial court erred by “failing to apply 

the appropriate legal standard” as set forth in Sandford, 143 N.H. at 485. 

(Bolding omitted.) It contends that, despite receiving evidence at trial that 

created an inference of adverse use, the trial court failed to apply the burdenshifting framework of Sandford and “neglect[ed] to make any findings regarding 

the Association’s initial burden of production.” The Association contends that 

the trial court failed to shift the burden to the landowner to produce evidence 

of permission and, thus, erred as a matter of law. A review of the record, 

however, shows that the trial court, in fact, expressly applied the burdenshifting analysis set forth in Sandford.

At the close of the Association’s case, Pollock and defendant Edward 

Wallack, executor of the decedent’s estate, moved for a directed verdict, arguing 

that the Association had failed, as a matter of law, to carry its burden of 

showing that there was a lack of permission. In denying the motion, the trial 

court specifically discussed the shifting burdens of proof contained in 

Sandford. The trial court reasoned that, pursuant to Sandford,

to establish a prima facie case on an adverse use, a claimant must 

initially produce evidence of acts of such character that created 

[an] inference that the claimant adversely used the landowner’s 

property, that is used it without permission . . . .

[O]nce the claimant establishe[s] the initial burden of 

production that burden then shift[s] to the landowner to produce 

evidence that the claimant’s intrusive acts were, in fact, permitted. 

This is not a shifting burden of persuasion. Once the claimant 

establishes the initial burden of establishing a prima facie case, 

the burden of production shifts to the landowner . . . to produce 

evidence to the contrary on the issue of permission or run the risk 

that the fact finder find in the claimant’s favor.
6

The claimant always maintains the burden of persuasion on 

the issue of absence of permission as a necessary component of 

the claim of right or adverse use required . . . to prevail.

Based upon the evidence presented by the Association in its case-in-chief, the 

trial court found that the Association had presented a prima facie case. 

Accordingly, the trial court denied the defendants’ motion for a directed verdict. 

We find no error.

The Association next argues that the trial court erred in ruling that its

historic use of Lot 12 was not adverse on the basis of a permissive arrangement 

between Pollock and Wallack and the Association. It contends that the trial 

court “misconstrued the evidence, which tends to show that the Association 

members’ use was adverse from 1995 to 2015.” We disagree.

The trial court found that the evidence presented at trial was 

consistent with Lewis Pollock’s testimony that he and Norman 

Wallack gave permission to the Association to use Lot 12 on the 

condition that the Association pay Lot 12’s taxes, its maintenance 

costs, and to move the fence. Consistent with this finding, it is 

uncontested that the Association’s administrators paid Lot 12’s 

property taxes on behalf of the defendants from 1979 to 2014, and 

there is no evidence that any member of the Association sought to 

merge the titles of Lots 11 and 12 prior to 2014, suggesting that 

these administrators at least understood that the [defendants]

owned Lot 12 and that the Association’s use of Lot 12 was 

somehow permissive. Even if the court were to credit William 

Northfield’s testimony that he was never apprised of such an 

arrangement, Mr. Northfield’s mere lack of knowledge does not 

necessarily suggest that no such arrangement existed.

The trial court rejected the Association’s argument that it met its burden of 

proof to show adverse use, reasoning that the subjective beliefs or motives of 

the adverse possessor were not determinative and that, moreover, “‘when a use 

of another’s land began under that person’s permission, it cannot become 

adverse in nature without an explicit repudiation of the earlier permission.’”

(Quoting Shortt, 139 N.H. at 244 (brackets omitted).)

Furthermore, the trial court reasoned, even assuming without deciding 

that Pollock and Wallack “should have known that numerous members of the 

Association subjectively believed that the Association in fact owned Lot 12,” the 

court was not persuaded that “the Association’s use of Lot 12 should have 

alerted [them] that the Association, as a legal entity, had repudiated the 

defendants’ permission.” As the trial court stated, “To the contrary, the 

evidence overwhelmingly demonstrates that the Association fully complied with 
7

[Pollock’s and Wallack’s] conditions, principally by paying Lot 12’s taxes, and 

that the Association’s members used Lot 12 as [Pollock and Wallack] 

contemplated, that is for recreational purposes consistent with the 

Association’s communal environment.”

Although the Association contends that Pollock’s testimony of a 

permissive arrangement was “completely uncorroborated” and “self-serving,” 

the trial court expressly found “credible and persuasive” his testimony that the 

Association agreed to maintain Lot 12, pay the property taxes, and relocate the 

fence in exchange for the use of Lot 12 indefinitely, and that this arrangement 

was well known to the members of the Association. “Since the trial court had 

the advantage of seeing and hearing the witnesses on the stand, we will not 

substitute our judgment for that of the trial court.” Paquette, 132 N.H. at 419.

We have reviewed the record and conclude that the trial court’s factual 

findings are supported by the evidence presented at trial and are not legally 

erroneous. See Little, 170 N.H. at 275. To the extent that the Association 

contends that a permissive use must be understood and accepted by the 

claimant, we note that it acknowledged at oral argument that there is no case 

authority in support of such a proposition.

Finally, the Association argues that the trial court erred in ruling that its

use of Lot 12 was not exclusive from 1995 to 2015. Given, however, that we 

find no error in the trial court’s ruling that the Association’s use of Lot 12 was 

permissive, and thus not adverse, we need not address the question of 

exclusivity as the Association’s adverse possession claim fails as a matter of 

law.

Affirmed.

LYNN, C.J., and HICKS and BASSETT, JJ., concurred.